Cunneen v The King

[2024] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Cunneen v R [2024] NSWCCA 38

Hearing dates:

9 October 2023

Date of orders:

13 March 2024

Decision date:

13 March 2024

Before:

Ward P at [1]; Davies J at [165]; Fagan J at [173]

Decision:

1.   Grant leave to appeal against conviction on grounds 3 and 9.

2.   Refuse leave to appeal on grounds 2 and 4-8.

3.   Uphold ground 1 and allow the appeal.

4.   Order that the conviction be quashed and that there be a new trial.

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice

EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial

EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender

Legislation Cited:

Criminal Appeal Act 1912 (NSW), ss 5, 6

Evidence Act 1995 (NSW), ss 9, 66A, 87, 91, 92, 93, 136, 178

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48

Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28

Latu v R [2023] NSWCCA 19

Libke v R (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Quinn v R [2023] NSWCCA 229

R v Carter & Savage [1990] 2 Qd R 371; [1990] 47 A Crim R 55

R v Cunneen (No 1) [2022] NSWDC 585

R v Dawson [1961] VR 773

R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127

R v Kirkby [2000] 2 Qd R 257

R v Newson; R v Cunneen (No 2) [2020] NSWSC 462

R v Simpson (2008) QCA 413

R v Stone [1981] VR 737

R v Tevendale [1955] VLR 95

R v Welsh [1999] 2 VR 66; [1998] VSCA 138; (1998) 105 A Crim R 448

Roos v R [2019] NSWCCA 67

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Winning v The Queen [2003] WASCA 245

Category:

Principal judgment

Parties:

James Anthony Cunneen (Appellant)
Rex (Respondent)

Representation:

Counsel:
P Rosser KC (Appellant)
G Wright SC with C Brain (Respondent)

Solicitors:
O’Brien Winter Partners (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/186919

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 November 2022

Before:

Mahony SC DCJ

File Number(s):

2017/186919

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was convicted by a jury in July 2022 following a trial in the District Court of New South Wales, as an accessory after the fact to the murder of Ms Carly McBride, the then-girlfriend of the appellant’s friend, and the principal offender (Newson). In November 2022, the appellant was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years.

Ms McBride was last seen on 30 September 2014 in Muswellbrook, New South Wales. Her skeletal remains were discovered in August 2016, in a bushland outside of the town of Scone. The Crown’s case was that Newson murdered Ms McBride and that the appellant had helped Newson dispose of Ms McBride’s body, provided a false alibi for Newson, supported Newson’s public efforts to help search for Ms McBride, deleted digital telephone data that may have shown his and Newson’s whereabouts, supported Newson’s statements to make it appear that Ms McBride’s ex-partner was an appropriate suspect, and updated Newson about the progress of the police investigation, whilst knowing that Newson had murdered Ms McBride.

The appellant appealed against his conviction, raising the following nine grounds of appeal. Ground 1, that the trial judge erred in admitting a certificate of Newson’s conviction. Ground 2, that the jury was inadequately directed as to the elements of the offence. Ground 3, that the trial judge’s response to a jury question regarding the appellant’s knowledge of Newson’s intent to kill Ms McBride was inadequate. Grounds 4 and 5, that the trial judge erred in admitting into evidence transcripts of police interviews with Newson. Ground 6, that the trial judge misdirected the jury as to the use of Newson’s interviews against the appellant. Ground 7, that the trial judge erred in admitting against the appellant the evidence of sexual interaction between Newson and another woman. Ground 8, that the trial judge erred in admitting and leaving to the jury a text message sent by the appellant, as amounting to an admission. Ground 9, that, on the evidence properly admissible against the appellant, the verdict was unreasonable.

Held (Fagan J as to grounds 1-3, Ward P and Davies J agreeing; Ward P as to grounds 4-9, Davies and Fagan JJ agreeing), granting leave to appeal on grounds 3 and 9, refusing leave on grounds 2, 4-8, dismissing grounds 3 and 9, upholding ground 1 and allowing the appeal, quashing the conviction and remitting the matter for a new trial:

As to ground 1:

1. The trial judge was incorrect to find that the common law rule stated in R v Dawson [1961] VR 773 is not abrogated by s 91 of the Evidence Act 1995 (NSW) and remains operative by force of s 9(1). The certificate of Newson’s conviction was within the meaning of the opening words of s 91(1) “evidence in the decision” in Newson’s trial for murder. The relevant “fact that was in issue in the proceeding” was whether Newson had murdered Ms McBride, which could be broken down into several facts in issue. The effect of s 91(1) is that the certificate, being evidence of the decision in the Newson trial, was not admissible in the prosecution of the appellant to prove the existence of the fact, contested in Newson’s separate trial, that Newson had murdered Ms McBride. The exceptions to s 91, found within ss 92 and 93, have not been engaged. The Crown’s concession as to ground 1 has been properly made: [201]-[202].

   R v Dawson [1961] VR 773, discussed.

2. For the purpose of determining whether the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied, the error of law in admitting the certificate is “a serious breach of the presuppositions of the trial”. It was an error of such consequence and involving such a departure from the essential requirements of a fair trial that the operation of the proviso is excluded. The critical issue in the case was left to be determined by the jury taking into account an extraneous matter, of potentially significant influence, that by law they should not have been told about or should have been directed to disregard. That being the nature of the error, it cannot be said that no substantial miscarriage of justice actually occurred. A retrial should be ordered because the certificate, being evidence of the decision in the Newson trial, was not admissible in the prosecution of the appellant to prove the existence of the fact, contested in Newson's separate trial, that Newson had murdered Ms McBride: [270]-[271].

   Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, applied.

As to ground 2:

1. There is a clear inference from the trial record that the reason for defence counsel not raising the matters as to which complaint is here made in relation to the adequacy of the directions as to the elements of the offence is that his Honour saw neither of them as an issue in the case and recognised that if the jury were satisfied beyond reasonable doubt with respect to the six particulars of assistance that the Crown relied upon, they would also be satisfied that each of those matters involved active steps on the part of the appellant and had the capacity to assist Newson to escape apprehension and punishment. A rational forensic justification for counsel not having sought directions on the putative additional points can readily be discerned. No perceptible risk of miscarriage has arisen from the omission of the additional directions the appellant now propounds: [219]-[220].

   De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48; Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33; Latu v R [2023] NSWCCA 19, applied.

As to ground 3:

1. In circumstances where the jury’s question as to knowledge of Newson’s intent to kill Ms McBride did not reveal any misunderstanding of an element of the offence but, on the contrary, showed that they were endeavouring to apply it correctly to the evidence, the suggested addition to the trial judge’s response was not required: [228].

As to grounds 4 and 5:

1. Leave should be refused to argue grounds 4 and 5 of the grounds of appeal. The fact that defence counsel reviewed the recording and transcript of both interviews and requested that some redactions be made but did not object to the tender of the balance of the material, and did not seek any direction limiting the use of that material, is telling. Absence of objection by defence counsel to some of the material may again be explicable by the fact that it was in the appellant’s interests to implicate Mr Easton as a suspect and that Newson’s account of his movements on 30 September largely accorded with that of the appellant: [32]. Given that there was other ample evidence as to Newson’s jealousy and disposition to violence or threats of violence, no miscarriage of justice has been established by reason of the admission of statements by Newson going to that issue, even if they were otherwise not admissible against the appellant: [34].

As to ground 6:

1. It is clear from a reading of the impugned direction as a whole that the trial judge was making clear to the jury that it was necessary for the Crown to prove an agreement or common purpose between Newson and the appellant that was still on foot or current at the relevant time and that the acts done or words spoken were in furtherance or pursuance of that agreement. There was no misdirection and leave should not be granted in respect of ground 6: [54]-[55].

As to ground 7:

1. Leave should not be granted to raise ground 7. Having regard to the opening address of defence counsel, it appears that a forensic decision was made not to object to evidence as to Newson's "infidelity" (but instead to distance the appellant from that evidence). No incompetence of counsel ground is here raised. There may well have been a reason not to object to that evidence. The evidence was also admissible as going to Newson's state of mind at the relevant time. No miscarriage of justice has been established as likely to have been caused by the admission of such evidence: [65]-[66].

As to ground 8:

1. Leave to raise ground 8 should be refused. It can readily be accepted that the probative value of this evidence was weak given that the text message, read in context, was responding to a query as to the appellant’s financial situation (and there was no substantial financial assistance rendered by the appellant to Newson). However, that was a matter for the jury to assess; and both Counsel addressed the jury as to its significance. The failure by defence counsel to object to its admission in evidence suggests that defence counsel must have considered the evidence capable of being adequately dealt with by submission: [78].

As to ground 9:

1. Having independently reviewed the whole of the evidence, on the assumption that the jury accepted that Newson had murdered Ms McBride, this is not a case where the jury must have entertained a doubt about the appellant’s guilt as accessory after the fact: [149]-[152].

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Libke v R (2007) 230 CLR 559; [2007] HCA 30; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied.

2. The relevant question is whether it was reasonably open to the jury to conclude (assuming that the certificate of conviction had not been tendered), on the evidence properly admissible against the appellant at trial, that Newson had murdered Ms McBride on 30 September 2014 during the window of opportunity identified. On an examination of all the evidence, there is no reasonable doubt that Newson did murder Ms McBride. When all the evidence is considered, the Crown has excluded any reasonable alternative hypothesis consistent with Newson's innocence: [158].

JUDGMENT

1. WARD P: I have had the considerable advantage of reading in draft Fagan J’s reasons as to grounds 1-3, with which I agree. I address in these reasons grounds 4-9. I also agree with Fagan J’s additional comments in relation to those grounds. As I explain at the conclusion of these reasons, I agree with Fagan J that, in light of the error established in relation to ground 1, it cannot be said that there has not been a substantial miscarriage of justice and hence the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) cannot be applied (even though, considering the unreasonable verdict ground, I am comfortably persuaded on all the evidence excluding the certificate of conviction that the appellant is guilty beyond reasonable doubt of the offence with which he was charged). Accordingly, I agree with the orders that his Honour has proposed.

2. The background to this matter is set out in Fagan J’s reasons and is not here repeated other than as necessary for consideration of the particular grounds of appeal which I address below.

Ground 4 – admission of Newson’s first police interview (3 October 2014)

3. Newson participated voluntarily in two police interviews: the first on 3 October 2014 and the second on 31 October 2014. An edited recording (redacted to omit irrelevant material) was tendered of both interviews (with corresponding transcript) and admitted into evidence without objection in the appellant’s trial.

4. Ground 4 challenges the admission of most of the first record of interview on the basis that this amounted to hearsay inadmissible against the appellant to prove that Newson had committed the crime of murder. A similar challenge is made to the admission of the second record of interview (see ground 5).

5. As noted, no objection was taken at trial to the admission of the first record of interview, counsel for the defence saying (see 23/05/22, T 357-358) that this was strictly an interview with Newson, which he understood was being tendered “in respect primarily to the first element of the offence and it’s admissible for other purposes against [the appellant], so in that respect, I am not objecting to it”. The first element of the offence charged against the appellant was, of course, that Newson had committed the murder of Ms McBride. Thus, defence counsel appears to have accepted at the outset that it was permissible for the Crown to rely on the police interviews with Newson in the case against the appellant for the purpose of proving that Newson had committed the crime of murder and for other unstated purposes (see below). The appellant now takes a different position.

6. The appellant accepts that some material in Exs AT/AU was properly before the jury, that being evidence of the version of events given by Newson to the police, which the appellant concedes was relevant to compare with any version of those events given by the appellant (the Crown contention being that the two had concocted a “common story” about the events).

7. Relevantly, the parts of the first interview that the appellant accepts were admissible in the case against him (as set out in Annexure A to the appellant’s submissions) are Newson’s answers to Q 122, Q139, Q143-Q144, Q160, Q163-175, Q181 and Q183. These mainly related to what Newson said he and the appellant had done in the afternoon of 30 September 2014 after Newson had dropped Ms McBride at Mr Easton’s place. They included Newson’s statement that he was with the appellant the whole time and that there was no one else there when he was at the appellant’s place.

8. However, the appellant says that the balance of Newson’s first record of interview was inadmissible against him (the appellant) as to the fact of the murder by Newson, which the appellant says could only be proven in the case against him by evidence admissible against him (citing R v Welsh [1999] 2 VR 62; [1998] VSCA 138; (1998) 105 A Crim R 448).

9. Complaint is made that no direction was given to the jury limiting the use to be made of the first record of interviews (though it must be noted that there was no application for any direction to be made about this material). In particular, the appellant says that the Crown made use of what the appellant has identified as the inadmissible portions of the transcript in final address in the following ways.

10. First, as to Newson's self-reported aggressive attitude toward Mr Easton as going toward a propensity and capacity to act violently (the appellant referring in particular to Newson’s answer to Q135 and the Crown’s closing address at 14/06/22, T 1069.34).

11. Second, Newson’s statements in the interview that were available to prove Newson’s jealousy, which the Crown suggested was a possible motive for the murder (the appellant referring to 14/06/22, T 1072ff). The appellant notes that part of the evidence relied upon was Newson's version of the closing of Ms McBride's Facebook account. The appellant accepts that it was open to the Crown to prove, as against the appellant, that Newson was of a jealous disposition (noting that the Crown called Newson’s partner at the time of his arrest, Ms Shannon McAlpine, to adduce such evidence – see 01/06/22, T 776ff). However, the appellant says that it was not open to the Crown to prove such a disposition by Newson's own representations. The appellant says that the statements made by Newson as to his engagement with Easton on 30 September 2014 (to the effect that Newson wanted to pull Easton outside and beat him senseless) amounted to an admission by Newson (i.e., an out of court statement against his interests) that was not admissible against the appellant to prove Newson’s violent disposition and tendency (see AT 14.22).

12. Third, the statement by Newson that Mr Easton had told him that Ms McBride was going to ring him (i.e., Newson), which Newson then corrected to being that Ms McBride was going to ring “someone” (see T 1083.25ff), a statement which the Crown characterised as Newson having “tripped himself up”. The appellant says that any lie by Newson, evidencing his consciousness of guilt or damaging his credibility, is not admissible against the appellant; nor was Newson's credibility at issue in the trial against the appellant.

13. The appellant argues that the difficulty with the admission of the material the subject of ground 4 is compounded by the misdirection the subject of ground 6 (see below).

14. The Crown, in its written submissions, addressed grounds 4 and 5 together, noting that since no objection was taken at trial to the admission of either of the Newson records of interview, leave is necessary to bring these grounds. In that respect, the Crown submits that the fact that defence counsel had reviewed the transcripts before their tender and had requested a number of edits to the transcripts (to remove objectionable or irrelevant material) weighs against the grant of leave now to argue that additional objections ought to have been taken.

3. The Crown points out that the appellant was on notice that the Crown intended to rely on some of Newson’s statements for a hearsay purpose, pointing to the Crown’s statement in opening that (see T 42.47-43.2):

…we utilise some things said by Mr Newson in two ways, and one of those ways is if it’s an expression of his current state of mind where he’s happy, sad, what his intention is, what his state of knowledge is, we say that’s available and if it’s relevant then it can to go this issue in the case of the murder and, so that’s an example of that …

16. The Crown says that defence counsel accepted that certain evidence was relevant to whether Newson had murdered Ms McBride even if it did not establish any involvement on the appellant’s part (referring to the statements extracted in the appellant’s written submissions on this ground of appeal).

17. The Crown emphasises in this context that it relied on the fact that both Newson and the appellant had the opportunity in their police interviews to give detailed accounts of their movements on the date of Ms McBride’s disappearance and that they each gave similar accounts (both omitting in their first interviews to mention certain matters, including attending the appellant’s father’s property and a storage shed or unit in Scone). As noted above, the appellant accepts that this was a permissible use of Newson’s records of interview.

18. However, the Crown points out that it also relied on other evidence to prove the common purpose or agreement between Newson and the appellant, such as evidence of lawfully recorded telephone conversations between the appellant and Newson in which they discussed their respective interviews with police and their movements on the day Ms McBride went missing. The Crown’s case was that at times Newson was passing information to the appellant about what he told police (for example, that he told police in his second interview that during the time they were together they also visited the appellant’s father’s farm) and the Crown submitted that those conversations needed to be understood in the context of what each of them had told the police (the Crown here referring to 14/06/22, T 1104).

19. The Crown argues that this is not a case where it relied on representations made by Newson (who was not a witness) to impugn Newson’s credibility generally (independently of anything done by the appellant) or to prove murder. Rather, the Crown says that Newson’s representations were circumstantial evidence proving the actus reus of the appellant’s offence in circumstances where the Crown case was that the two had concocted a false story to distance Newson from the murder. The Crown argues that the appellant’s alleged acts of assistance could not be understood without reference to what Newson had told police.

20. The Crown says that it relied on representations made by Newson in his police interviews for other non-hearsay purposes (including to prove motive) and, in some instances, pursuant to the exception to the hearsay rule in s 66A of the Evidence Act.

21. As to the three categories of representations made by Newson to which the appellant has referred in his written submissions (see the appellant’s written submissions at [66]-[70]), the Crown maintains that the admission of any statements within those categories has not been established as giving rise to a miscarriage of justice.

22. First, as to the statements relied upon by the Crown as showing Newson’s “self-reported aggressive attitude” towards Mr Easton, the Crown points to statements by Newson consistent with Newson having a hostile attitude towards Mr Easton (see Ex AU p 17). The Crown argues that Newson’s representations about Mr Easton were relevant to the allegation that Newson had attempted to implicate Mr Easton as a suspect, and to prove Newson’s jealousy of Mr Easton’s relationship with Ms McBride; and hence were used for non-hearsay purposes. The Crown says that significant portions of the interviews relating to Mr Easton fall into this category (referring to Ex AU pp 16-20, 22, 30, 33).

23. Further, the Crown argues that there was a potentially forensic reason for the appellant to retain Newson’s assertions in the interviews about Mr Easton, given that Mr Easton may have appeared to be a credible alternative suspect whom the Crown was required to exclude, and that it was a key part of the defence case that the Crown could not do so. The Crown says that statements suggesting violent instincts on Newson’s part directed at Mr Easton could equally be relied on by the appellant’s counsel as suggesting genuine anguish and concern on Newson’s part as to Mr Easton’s potential involvement in his partner’s disappearance.

24. Second, as to Newson’s statements suggesting jealousy on his part, the Crown says that, to the extent that Newson’s statements might have been available for a hearsay purpose, evidence of Newson’s jealousy and state of mind was admissible under s 66A of the Evidence Act. The Crown submits that the police interviews (particularly the first, having taken place on 3 October, within four days of Ms McBride’s disappearance) were sufficiently contemporaneous to satisfy the requirements of s 66A. (The appellant cavils with this proposition, arguing that there was insufficient contemporaneity). In any event, the Crown submits that, once in, the evidence was admissible for all purposes in the absence of an application to limit its use under s 136 of the Evidence Act.

25. The Crown says that there was no reason why statements by Newson which suggested jealousy ought to have been the subject of objection where there was other evidence from which that conclusion could have been drawn, referring to the evidence of Ms McAlpine and to the evidence from Ms McBride’s mother that she believed Newson to be “controlling” in the relationship with her daughter (23/05/22, T 315.35). The Crown also notes that in opening address the defence counsel sought to distance the appellant from any jealousy or controlling behaviour on the part of Newson (see at 16/05/22, T 67.18-21), it there being said that “[a]ny Facebook activity created by others has nothing to do with [the appellant]”.

26. As to the third matter to which the appellant points in relation to ground 4 (the statements that the Crown submitted amount to Newson having “tripped himself up” in his first police interview), the Crown says that this submission was open (given that it was consistent with a body of other evidence to the effect that Newson did have a plan to meet with Ms McBride around 2:00 pm that day). The evidence to which the Crown here refers includes that of Ms Nicole Finch (that the appellant complains was inadmissible against him – see below).

27. The Crown says that, once allowance is made for the admissibility of statements by Newson for non-hearsay purposes and as exceptions to the hearsay rule, there were not any (or at best only limited) portions of the interviews relied on solely for their truth.

Determination

28. Ground 4 is considered together with Ground 5 below.

Ground 5 – admission of Newson’s second police interview (31 October 2014)

29. Ground 5 relates to the second police interview in which Newson participated, that being the interview on 31 October 2014 (the recording of which was admitted as Ex CS and the transcript as Ex CT). There was no objection by defence counsel to the admission of this material into evidence. As with the first record of interview, the second record of interview was redacted to remove irrelevant material.

30. The appellant maintains that, other than to the extent that in that interview Newson provided a version of his whereabouts on the afternoon of 30 September 2014, the balance of his statements were inadmissible hearsay and not available to prove, as against the appellant, the fact of murder by Newson. The portion that the appellant accepts was properly admissible is as set out in Annexure B to his written submissions (Q630-704; Q818-826). The appellant notes that the Crown relied upon this material in its final address (14/06/22, T 1101ff), commenting adversely upon Newson's credibility.

31. The Crown makes the same submissions in relation to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) in respect of this material (see above) and, again, points to the non-hearsay purpose of the evidence as demonstrating the “common story” told by the appellant and Newson. Indeed, in the portion of the Crown’s closing address to which the appellant here refers (see in particular at 14/06/22, T 1103.40) the Crown says it was emphasising that, in the intercepted telephone call between the appellant and Newson on 31 October 2014 (Ex CR) in which they discuss the police investigation and the interview that Newson had just had with the police, the appellant and Newson were communicating and agreeing on the story to be given to the police. In other words, the Crown’s emphasis here is on the communications between the two as to the version of their common account of events; not on Newson’s credibility as a general matter.

Determination

32. Leave should be refused to argue grounds 4 and 5 of the grounds of appeal. The fact that defence counsel reviewed the recording and transcript of both interviews and requested that some redactions be made but did not object to the tender of the balance of the material, and did not seek any direction limiting the use of that material, is telling. Absence of objection by defence counsel to some of the material may again be explicable by the fact that it was in the appellant’s interests to implicate Mr Easton as a suspect and that Newson’s account of his movements on 30 September 2014 largely accorded with that of the appellant.

33. In oral submissions, the appellant indicated that the real complaint as to admission of the respective records of interview is as to two matters: first, Newson’s statement as to his rage or fury against Mr Easton in the conversation at 6.30 pm on 30 September 2014 (i.e., that he wanted to beat him senseless) and, second, Newson’s admission that he had caused Ms McBride to take down her Facebook page (see AT 12.49-13). Those statements both go to the issue of Newson’s violent disposition and/or jealousy.

34. The statements by Newson as to his attitude towards and jealousy of Mr Easton, were relevant to the alleged attempts to implicate Mr Easton as a suspect, with which the Crown alleged the appellant had assisted. The evidence of Newson’s jealousy and state of mind was also admissible pursuant to s 66A of the Evidence Act, there being sufficient contemporaneity between the confrontation between Newson and Mr Easton on 30 September 2014 and the first police interview on 3 October 2024. Further, given that there was other ample evidence as to Newson’s jealousy and disposition to violence or threats of violence, no miscarriage of justice has been established by reason of the admission of statements by Newson going to that issue even if they were otherwise not admissible against the appellant.

35. Similarly, the statement by Newson that he had caused Ms McBride to take down her Facebook page (though arguably not an admission falling within the exception in s 66A, given the lack of contemporaneity) is admissible for a non-hearsay purpose, namely, for the fact that it was said to the police, not its truth.

36. As to the complaint by the appellant in respect of the use made of material from the first interview in closing submissions (and in this context the appellant’s complaint that evidence damaging Newson’s credibility was not admissible against the appellant), the submission that Newson had “tripped himself up” in his first police interview was certainly open on the basis of other evidence of there being an arrangement that Newson would pick up Ms McBride at McDonald’s (namely, that of Ms Nicole Finch and that of Mr Easton). As noted above, the appellant says that Ms Finch’s evidence was itself not admissible against the appellant, though conceding that there was no objection to it (see AT 17.26ff). This was evidence going to the first element of the offence charged against the appellant (i.e., that Newson had committed the murder); not as to the credibility generally of Newson.

37. As to the evidence of what Newson told the police in the second interview (and why he lied in the first interview), this is again relevant to the allegation by the Crown that the appellant assisted Newson by concocting the “common story”. As the Crown submits, the intercepted conversations between the two needed to be understood in the context of what each of them had told the police in their recorded interviews; and the appellant’s acts of assistance could not be understood without reference to what Newson had told police.

38. Therefore, no miscarriage of justice has been established and leave to raise grounds 4 and 5 should not be granted pursuant to r 4.15 of the Criminal Appeal Rules.

Ground 6 – direction as to use of statements made by Newson

39. Ground 6 relates to the direction given to the jury (during the summing up at 21/06/22, T 137-138) as to the use that could be made (against the appellant) of the statements made by Newson. Relevantly, the trial judge directed the jury, concerning what the Crown had alleged to be the joint criminal enterprise, that:

The evidence against the accused includes evidence relating to what the accused did or said. It may also include what was said or done by Sayle Newson. Generally speaking, an accused is not to be held liable for the acts or statements of others. However, there is an exception to this rule. The exception permits in certain circumstances and for certain limited purposes evidence facts done and statements made by Sayle Newson to be admissible in the case against the [appellant].

40. The trial judge then proceeded to direct the jury as to what the Crown was required to satisfy the jury of in relation to the appellant (namely, that there was an agreement to do the things outlined by the Crown and that the appellant participated in that agreement).

41. At 21/06/22, T 139-140, his Honour returned to the direction as to when acts or words of Newson might be admissible against the appellant:

I have already explained to you that in general an accused is to be regarded as responsible in law only for his own acts or statements and he is not generally to be held responsible for acts done or statements made by others when he is not present. I have informed you, however, that there is an exception to this rule. This exception provides that relevant acts done and statements made by other person alleged to be in agreement, in this case Sayle Newson, and done or made while the agreement is still active are evidence against the [appellant] even though he might not have been present when the act was done or the statement was made.

Evidence of such acts or statements of Sayle Newson are admissible against the [appellant] on the issue of whether there was an agreement as alleged by the Crown. Additionally, if you find that these acts and statements by Sayle Newson were for the purpose of carrying out the agreement, then that evidence may also be regarded as evidence of the [appellant’s] participation in the agreement.

42. The appellant’s complaint is that it was wrong for his Honour in effect to say that the only qualification for the exception to arise (i.e., for Newson’s statements to be admissible against the appellant) was that the agreement be then current (i.e., “while the agreement is still active”). The appellant emphasises that only actions or statements in furtherance of the agreed common purpose (assuming evidence of the existence of the agreement in the first place) are admissible against someone other than the person doing the acts or speaking the words (citing Tripodi v The Queen (1961) 104 CLR 1 at 6-7; [1961] HCA 22; Ahern v The Queen (1988) 165 CLR 87 at 94-95; [1988] HCA 39).

43. The appellant argues that the jury should have been directed to the effect that only acts done and statements made while the agreement is then still active and “made in pursuance or furtherance of the agreement” fell within the exception. The appellant contends that, without that additional qualification, the jury was being told that any statement of Newson (which would include confessional material or any untrue statement by Newson) for whatever purpose (whether or not in pursuance of or furtherance of an agreement) would be admissible against the appellant. Complaint is made that this direction exacerbates the problem caused by the admission against the appellant of the two Newson police statements.

44. The particular statement by Newson (made in the appellant’s absence) about which the appellant complains in the context of this direction is the statement attributed to Newson by Ms Finch as to the arrangement to pick Ms McBride up from McDonald’s at 2:00pm, which the appellant maintains was not admissible as against himself (see AT 16). The appellant identifies this as the crucial statement about which objection should have been (but was not) taken.

45. The significance that the appellant attributes to this is that the appellant says that this is the only evidence of a prior arrangement between Newson and Ms McBride for her to be picked up by Newson from McDonald’s at 2:00pm; and that it was thus the only evidence against the appellant suggesting that there was any basis for an explanation that Newson was going to meet with Ms McBride. The appellant says that it cannot be a statement in pursuance of a common purpose and cannot be regarded as speaking to a present state of mind in terms of s 66A.

46. Similar complaint is made as to the telephone calls where Newson spoke to Mr McBride (the father of the deceased) (on 6 November 2014 at 9:28pm; and 12 December 2014 at 15:00) though appellant accepts that “probably not much hangs on those calls” (AT 19).

47. The Crown submits that there was no misdirection and that r 4.15 should operate to exclude this ground in circumstances where defence counsel made no objection at the time in relation to this direction.

48. The Crown submits that the direction given by his Honour correctly distinguished between the admissibility of statements or acts by Newson for the purpose of proving the existence of an agreement, on the one hand, and the admissibility of statements or acts for the purpose of proving the appellant’s participation in that agreement, on the other hand (referring to the second paragraph of the directions extracted at [41] above). The Crown says that this is consistent with principle (the Crown citing R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 at [38] per Simpson AJA, with whom Johnson and Harrison JJ (as his Honour then was) agreed, and referring to s 87(1)(c) of the Evidence Act).

49. Insofar as the appellant’s complaint is as to the reference to the agreement being “still active” (see the first paragraph extracted at [41] above) the Crown submits that, on a fair reading, this was merely a shorthand reference that was not intended to be a complete statement of the applicable principles and that this was more fully explained in the second paragraph extracted at [41] above. The Crown argues that it was correct that statements made by Newson were admissible only if the agreement was still active (or the common purpose was still on foot) and that the directions correctly made clear that it was only if the statements or acts by Newson were found to be “for the purpose of carrying out the agreement” that they could be used as evidence of the appellant’s participation.

50. In response, the appellant maintains that the two paragraphs of this direction speak about different things (see AT 15.46ff): the first, speaking to the exception to the general rule (and incorrectly omitting reference to the requirement that the acts or words be in furtherance of the agreement); and the second, telling the jury that if Newson’s statements were made for the purpose of carrying out the agreement they could be used as evidence of the appellant’s participation in the agreement. The appellant says that the second statement neither explains nor qualifies nor says anything about what had earlier been said (to the effect that if the jury found there was an agreement and it was still on foot, anything Newson said, such as his statement to Ms Finch, could be evidence against the appellant).

42. The Crown points out that it was a central feature of the Crown case that the appellant and Newson formed an agreement to falsify Newson’s whereabouts to exclude or eliminate his contact with Ms McBride after 12:45 pm on 30 September 2014; and that, to establish that agreement, the Crown relied in part on similarities between the statements made by Newson and the appellant in their respective recorded interviews with police about their movements that afternoon.

43. The Crown says that the interviews, in combination with other evidence including the telephone intercepts, were capable of supporting findings that an agreement or common purpose existed between the two and that Newson then made representations to advance the object of the agreement such that those representations were able to be attributed as admissions to the appellant (though noting that the Crown did not contend in closing that they were “admissions” as such). In those circumstances, the Crown argues that the direction at summing up at 14/06/22, T 140 was largely of no moment. The Crown says that it would have been clear to the jury that the Crown relied on Newson’s interviews to show that the two men “had put their heads together” and the Crown argues that it was open to the jury to reject or accept the Crown’s submissions.

44. The Crown notes that to the extent that what Newson said departed from what the appellant said, the Crown did not rely on those statements as admissions; rather the Crown contended that the respective accounts differed only in detail (consistent with the two having married up the main aspects of their accounts), referring to the Crown submissions to the jury at 14/06/22, T 1089-1090. The Crown says that this was consistent with the use of the interviews as circumstantial evidence to prove the combination between the two men.

Determination

54. In circumstances where there was no complaint at trial by defence counsel as to the now impugned direction, leave to raise this ground should be refused pursuant to r 4.15 of the Criminal Appeal Rules. Were leave to have been granted, this ground would be dismissed. It is clear from a reading of the impugned direction as a whole that the trial judge was making clear to the jury that it was necessary for the Crown to prove an agreement or common purpose between Newson and the appellant that was still on foot or current at the relevant time and that the acts done or words spoken were in furtherance or pursuance of that agreement.

55. The evidence of Ms Finch as to the statement made to her by Newson (as to the arrangement that he pick up Ms McBride from McDonald’s) went to the Crown’s case that Newson had murdered Ms McBride (the first element of the accessorial offence with which the appellant was charged) but it was also relevant in the case as against the appellant in that it went to the alleged acts of assistance (i.e., the concoction of a false common story as to Newson’s whereabouts on the afternoon of Ms McBride’s disappearance), as to which there was other evidence in the telephone intercepted conversations.

56. The complaint by the appellant that Ms Finch’s evidence as to this statement by Newson was not admissible against the appellant to prove that Newson committed the murder is considered in relation to ground 9 (the unreasonable verdict ground). Suffice it here to note that there was no misdirection; and hence leave should not be granted in relation to ground 6.

Ground 7 – evidence of sexual interaction between Newson and Ms Patterson

57. This complaint relates to the evidence adduced by the Crown from Ms Samantha Patterson, with whom Newson had contact through Facebook Messenger, SMS, and telephone on 1 and 2 October 2014. Relevantly, Newson had sent Ms Patterson a message at 5:37 am on 1 October 2014 (the morning after Ms McBride’s disappearance) requesting sexual intercourse. The messages contained further sexual content. Ms Patterson's evidence was that on 2 October 2014 she and Newson had engaged in sexual intercourse; that Newson was there for no more than an hour and that they used drugs (31/05/22, T 734-737); that later that night Newson returned to pick her up and drop her at a friend’s place; that on the way he stopped off at his mother’s house; and that Newson was acting strangely and was upset with her because he had slept with her and cheated on his girlfriend and was “[r]unning around like a chook with its head cut off” (31/05/22, T 737.30-31).

58. Tendered in evidence were messages the two had exchanged (Ex BO). Ms Patterson said that, in a phone call recorded on that log as having occurred at 6:21 am on 1 October 2014, Newson said he had finally fallen in love but “now she’s gone” and that someone had taken her (see 31/05/22, T 735-736), which the Crown argues is inconsistent with Newson believing at that early stage that she had gone missing some other way. The Crown notes that this account was consistent with Ms Patterson subsequently sending a message asking Newson if he had “heard anything yet” (Ex BO p 4).

59. No objection was taken by defence counsel to the admission of this evidence at trial.

60. The appellant notes that the Crown relied on this material in closing address as evidence that Newson’s claimed concern about Ms McBride was insincere (referring to 14/06/22, T 1093.50-1094.07). The Crown says that the evidence was relevant to whether Newson had murdered Ms McBride, which was a fact in issue in the appellant’s case, regardless of whether or not the appellant knew about Newson seeing Ms Patterson.

61. The appellant contends that, insofar as this evidence was capable of amounting to a representation as to Newson's state of mind, this evidence was irrelevant to the case against the appellant (the Crown says it was relevant to whether Newson had murdered Ms McBride, as noted above).

62. Insofar as it was relied upon by the Crown as an implied representation by words and conduct that Newson’s expressed concerns about Ms McBride were not genuine, and as such an admission on his part that he was not grieving, the appellant says that this was inadmissible hearsay in the case against himself. The Crown’s response is that nothing in this evidence can be construed as an implied admission by Newson to the murder; rather, that the evidence of Newson’s movements immediately after Ms McBride’s disappearance was another circumstance upon which the Crown could rely to ask the jury to draw an inference as to whether or not he was genuinely concerned about Ms McBride. The Crown alleged, with respect to this and other evidence, that Newson had acted differently publicly and privately following Ms McBride’s disappearance.

63. The appellant maintains that neither Ex BO nor the evidence of Ms Patterson was admissible in the case against him.

64. The Crown says that, consistent with the defence counsel’s opening (referred to above at [15]) in which it was said that any infidelity on the part of Newson had nothing to do with the appellant, a decision appears to have been made by defence counsel not to object to this evidence but to distance the appellant from it. The Crown submits that in those circumstances the appellant has not established that its admission gave rise to any miscarriage of justice.

Determination

65. Leave should not be granted to raise ground 7. Having regard to the opening address of defence counsel, it certainly appears that a forensic decision was made not to object to evidence as to Newson’s “infidelity” (but instead to distance the appellant from that evidence). Although it is now submitted by the appellant that it is difficult to understand why defence counsel took that view, no incompetence of counsel ground is here raised and, as the Crown argues, there may well have been a reason not to object to that evidence. In that regard, there were aspects of the exchanges with Ms Patterson that may have supported the conclusion that Newson was upset at the disappearance of Ms McBride (such as that Newson was upset that he had cheated on her). The evidence was also admissible as going to Newson’s state of mind at the relevant time.

66. No miscarriage of justice has been established as likely to have been caused by the admission of the evidence as to Newson’s sexual activity and messages to other women shortly after the disappearance of the deceased. The appellant’s knowledge or otherwise of that activity is not to the point.

Ground 8 – admission of text messages sent by the appellant (9 April 2015)

67. Ground 8 relates to the admission into evidence of a text message sent by the appellant to Abbey Marston (a friend of the appellant) on 9 April 2015, responding to a message from Ms Marston that raised with the appellant why he did not have any money (Ex BU):

I put it into something w[h]ere banks arnt [sic; aren’t] needed or invest it into certain ppl [sic; people]. I[']m not really shore how to feel about the whole thing. I lost out big time. I gave everything I had to help some[one] to get out of a bad situation. He[']s a good mate but that's not why I did it. I did it because if the tables were turned [I] know that he would be the only [sic; only] person that I know that would do it for some[one] else in his position. I dunno [sic; don’t know] if that makes sen[s]e. Like even if we didn't know each other and he was in my position I know that he would help some[one] else the same way. It’s hard to find genuine straight up ppl [sic; people] anymore around here. So yeah long story short [I’m] back to square 1.

68. The appellant said in his police interview dated 22 April 2015 that Ms Marston was with him on the night that Ms McBride was reported missing (Ex CZ, Q 422-429) (hence the Crown’s submission that Ms Marston had some involvement in or was aware of the police investigation, as providing context to the text message).

69. No objection was taken at trial to the admission of this evidence. The Crown says that this evidence had the capacity to be viewed as an admission by the appellant that he had assisted his “good mate” (Newson) with a “bad situation” (related to the death of Ms McBride) (see 14/06/22, T 1106.09ff). It is noted that there was no dispute in the trial that the appellant and Newson were close friends.

70. The appellant maintains that this message was incapable of being an admission, pointing out that, to constitute an admission, a representation by the appellant had to be “adverse to his interest in the outcome of the proceeding”.

71. The appellant says that the asserted admission must be viewed in its context, namely (by reference to its content) that the appellant was replying to comments from Ms Marston as to his financial situation. The appellant says that it was no part of the Crown case that he had provided financial assistance to Newson beyond $100 for petrol and telephone credit on 30 September 2014. The appellant argues that it cannot reasonably be supposed that this text referred to that (and says that nor would the provision of such assistance have the necessary tendency to give rise to accessorial liability).

72. Noting that the Crown told the jury that “this particular text says nothing about money” (see 14/06/22, T 1106.14), the appellant submits that it is entirely clear that the text conversation relates to money. The appellant also says that the message is not reasonably capable of being regarded as necessarily referring to Newson and argues that the message should not have been before the jury.

73. The Crown argues that the fact that Ms Marston had some involvement in, and awareness of the police investigation into Ms McBride’s disappearance (being with the appellant the night of the disappearance) was relevant context and made it more likely that this message would be construed by the jury as an admission than would be the case if it had been sent to someone entirely unconnected with the investigation. The Crown also notes that Ms Marston was a party to intercepted calls with the appellant in which she discussed Ms McBride’s disappearance with him, and that Ms Marston then asked him at one point whether Newson had been involved (Ex CV, call dated 7 November 2014 at 10:50 am). The Crown notes that on 23 February 2015, Ms Marston sent text messages to the appellant telling him that the police had attended her home and asked to speak to her about a missing person, which she presumed to be Ms McBride (Ex BT), and suggesting that she and the appellant speak before she spoke to the police, Ms Marston saying that she thought it was “in [her] best interests” to see him before doing so (Ex BT).

74. The Crown says that, in any event, the appellant has not established that the admission of the evidence resulted in a miscarriage of justice warranting leave to argue the point on appeal. It is noted that defence counsel had the opportunity to make submissions at the trial as to a form of direction to be given in relation to the text message (10/06/22, T 1054-1055); and that both counsel made submissions to the jury in their closing addresses as to how the message might be interpreted (14/06/22, T 1106, 1161).

75. In that regard, the Crown notes that the defence counsel pointed to the unlikelihood of the message being an admission to involvement in Ms McBride’s disappearance in light of the surrounding messages and their tone; and said that the suggestion that the appellant would describe Newson as a “straight up person” was implausible. Defence counsel also submitted to the jury (as the appellant does here) that (see at 16/06/22, T 1163):

He’s talking about money. He’s not talking about anything to do with Carly McBride. He’s not making any admissions at all. Why it’s brought for that purpose is a sign of, I don’t know, something or other.

76. It is noted that, in the course of summing up, the trial judge gave a direction to the jury which repeated the submission that the exchange concerned money and otherwise directed the jury in clear terms that the interpretation of the message and whether or not it constituted an admission was a matter for them (21/06/22, T 146-147).

77. The Crown submits that the competing interpretations of the text message were squarely raised for the jury’s consideration; and the jury was directed in clear terms that they needed to accept the Crown’s interpretation for the jury to treat the message as an admission.

Determination

78. Leave to raise ground 8 should be refused. It can readily be accepted that the probative value of this evidence was weak given that the text message, read in context, was responding to a query as to the appellant’s financial situation (and there was no substantial financial assistance rendered by the appellant to Newson). However, that was a matter for the jury to assess; and both Counsel addressed the jury as to its significance. The failure by defence counsel to object to its admission in evidence is therefore significant. Defence counsel must have considered the evidence capable of being adequately dealt with by submission.

Ground 9 – unreasonable verdict

79. The final ground of appeal is an unreasonable verdict ground.

80. The appellant emphasises that the Crown case against the appellant was entirely circumstantial; and that the Crown was required to prove, as the first element of the case (by evidence properly admissible against the appellant), that Newson had murdered Ms McBride. The Crown does not demur from this.

81. The crux of the appellant’s argument is that there was a glaring flaw in the Crown case (that being when, where and how the murder took place) (see AT 22). The appellant submits that the evidence relied upon by the Crown provided an extraordinarily narrow window of opportunity for Newson to have committed the murder, noting that the Crown case was that Newson had murdered Ms McBride at some time around 2:30 pm on 30 September 2014 and that Newson and the appellant had thereafter, in the course of the afternoon, disposed of Ms McBride’s body at Owens Gap, and then returned to the appellant's home by about 5:45 pm when they were seen by the appellant’s father.

82. As to the timing of events, the appellant says that, taking the Crown case at its highest, the evidence was as follows.

83. First, according to Mr Easton, Ms McBride arrived at his home at Calgaroo Avenue at “maybe quarter to one, one o’clock” (25/05/22, T 499.13). The appellant notes that this time is consistent with Newson’s presence at McDonald’s in Muswellbrook at 12:55 pm (Ex AA).

84. Second, that Ms McBride left Mr Easton's home at about 2:00 pm (25/05/22, T 503.26). The appellant argues that it might have been slightly after this, pointing to Mr Easton's evidence that when Ms McBride left he locked up and went to pick up his daughter from pre-school (25/05/22, T 505.18); that the drive to the childcare centre was less than 10 minutes (25/02/22, T 505.2); and that Mr Easton signed his daughter out from the childcare centre at 2:20 pm (Ex AY).

85. Third, that there was no communication between Ms McBride and Newson in which she informed him that she was leaving or had left Mr Easton’s house, noting that Mr Easton’s evidence was that there was no vehicle waiting for Ms McBride when she left (26/05/22, T 559.46ff) and that he last saw Ms McBride walking past the corner of his yard (25/02/22, T 504.20).

86. Fourth, that at 2:02 pm Newson was in the garage at the appellant's home (Ex CM).

87. Fifth, that the evidence of Mr Palmer was that he attended the appellant's home on the afternoon of 30 September 2014 and that he saw the appellant but that no other person was there (27/05/22, T 603ff). Mr Palmer stated that he attended at some point shortly after 2:13 pm (27/05/22, T 605.15), remaining for 10 minutes at the maximum (27/05/22, T 608.10).

88. Sixth, that the appellant's telephone records demonstrate that his telephone was receiving a signal from the Scone Mountain Tower at 2:48 pm. The appellant notes that information as to the range of coverage of that tower was not obtainable (17/05/22, T 201.16). It seems to be accepted that this meant that at 2:48pm the appellant was more than halfway to Scone. The appellant notes that driving time from Muswellbrook to Scone can vary from 25 minutes upwards depending on the route taken (Ex DJ; Exs 1-4).

89. From this, the appellant argues that the Crown theory therefore requires that: Newson left the appellant's home shortly after 2:02 pm; that, without any means of knowing that Ms McBride had left Mr Easton’s, he met her “by happenstance” (the appellant emphasising here his contention that there was no evidence properly admissible against the appellant of any prior arrangement for Ms McBride to meet Newson at McDonald’s); that Newson formed a murderous rage (presumably, the appellant says, through jealousy); that Newson found a location in Muswellbrook where he could visit extreme physical violence upon Ms McBride; that Newson did so in such a way to avoid any blood staining on his clothing which would have required him to change his clothing (noting that CCTV stills show Newson wearing the same T-shirt throughout the whole day – see Exs V, X, Z, AD and AE); that Newson’s proficiency with the heavy punching bag was such that he was capable of inflicting the injuries sustained by Ms McBride; that Newson placed Ms McBride in his vehicle; that Newson returned to the appellant's home and enlisted his help; that Newson’s timing was such that he avoided meeting Mr Palmer; and that Newson and the appellant then travelled north toward Scone, coming within the range of the Scone Mountain Tower by 2:48 pm.

90. The appellant says that on the Crown case the murder must have been committed between about 2:10/2:15pm and 2:30pm (that being the time that the two would need to have left Muswellbrook to be in the range of the Scone Mountain Tower by 2:48pm).

91. The appellant says that the evidence was incapable of establishing directly that Ms McBride died on 30 September 2014 or any other date; and that the evidence was incapable of establishing that her body was deposited at Owens Gap on that or any other date.

79. As to the location of the murder, the appellant says that it is difficult to imagine this taking place in a public place; that it would scarcely be possible in a car; and that it was not at the appellant's home (since Mr Palmer was there from about 2:13pm to 2:25pm).

80. The appellant says that the opportunities to which the Crown points for Newson and the appellant to dispose of Ms McBride's body are thus between 2:48 pm and 3:36 pm (the appellant’s phone being within range of the Scone Mountain cell tower at both times) or between 3:36 pm and 4:32 pm (the appellant being at the Susan St Scone cell tower for the latter). The appellant says that the lack of precision as to the coverage of the Scone Mountain tower makes any such assertions highly dubious. Further, the appellant says that the Crown’s assertion that part of the appellant's assistance to Newson was to join with him in providing a false alibi sits ill with the proposition that they both deliberately placed themselves in Scone without any apparent necessity to do so. (This last submission is somewhat circular in that on the Crown case it would have been necessary for Newson to dispose of Ms McBride’s body somewhere; and the Owens Gap location, with which Newson was familiar, puts both Newson and the appellant in the general location of Scone and away from Muswellbrook.)

81. The appellant says that the Crown evidence concentrated upon excluding as suspects a number of Ms McBride’s acquaintances but that the evidence did not directly rule out the possibility that Ms McBride met her death at the hands of a stranger.

82. Further, the appellant says that a supposition that the state of Ms McBride’s clothing (i.e., the fact that her jeans were done up – 16/05/22, T 92.50ff) points away from a possible sexual motive for Ms McBride’s murder requires the additional assumption that no interval passed between her disappearance on 30 September 2014 and her death.

83. It is noted that the Crown relied on six particulars of assistance given by the appellant as constituting the actus reus of the accessorial liability offence (see as set out by Fagan J at [195](2) below).

84. As to the reliance by the Crown on the allegation that the appellant had deleted digital data from his phone to conceal location for the period 17 February 2014 to 8 November 2014 (noting that Newson's phone had a similar gap from 18 September to 2 October 2014), the appellant says that the evidence does not justify a positive finding that, in either case, data was intentionally deleted. The appellant says that it was clear from the evidence of DSC Northey (06/06/22, T 947.18) that the reason for the absence of such data could not positively be determined; that it may have been retrospectively deleted or it may have been turned off and not turned back on. The appellant submits that the gap in the data on the respective phones is co-incidence. While he accepts that the co-incidence that those phones have a gap which includes the relevant day (30 September 2014) is capable of being a circumstance in furtherance of an agreement (to dispose of the body and evade apprehension) the appellant says that it is a very weak one (see AT 27.5ff) on which not much weight can be placed because it is not known who is responsible for the deletion of data on Newson’s phone. (In that regard, in the context of the cropping of the photo of Ms McBride, the appellant told the police that Newson was “pretty dumb with phones” and did not know how to use anything – Q386), which might suggest that any intentional deletion of data was not done by Newson; but this is speculation. The appellant’s argument is that, while there is a co-incidence in the deletion of the data, it is not established how it occurred or that it was being done in concert.

85. In the case of his own phone, the appellant says that the precipitating action for the absence of location data appears to be the connection of his phone to a mobile wi-fi dongle on 17 February 2014 (after which location data remained unavailable until 8 November 2014). The appellant says that, whatever may be the case with Newson’s phone, it cannot reasonably be asserted that any action was taken by the appellant, retrospectively, to delete such data. Further, the appellant says that the dates for which data was unavailable themselves make no sense (the appellant’s data being unavailable since February 2014 whereas Newson’s data was unavailable from September 2014); and that it is overwhelmingly more probable that location data on the appellant’s phone had been off since 17 February, rather than there being any attempt for the appellant to delete data in concert with Newson.

86. With respect to the allegations that the appellant: supported Newson’s search efforts, supported his attempts to defect suspicion onto others and discussed the investigation with him, the appellant says that there is a total absence from the evidence of any positive act (or statement) by the appellant (in any of these regards), which had the capacity to assist Newson to avoid arrest, trial or punishment. It is noted that accessorial liability requires an actus reus which must be a positive act and which must have such a capacity.

87. Thus, it is said that the evidence properly admissible against the appellant was incapable of supporting his conviction.

88. In response, on the unreasonable verdict ground the Crown makes the following submissions, proceeding on the assumption (in light of the Crown concession on ground 1) that the relevant question is whether, on the whole of the evidence excluding the certificate of conviction in respect of Newson, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

89. As to when the murder occurred, the Crown submits that, while there was no direct evidence that Ms McBride was murdered on 30 September 2014, the evidence was capable of establishing this fact beyond reasonable doubt. In this regard, the Crown points to the following matters. First, the absence of any credible sightings of Ms McBride after that date, despite a comprehensive investigation. (Counsel for the appellant, in oral submissions on this application, made clear that he did not suggest that there was any credible sighting of Ms McBride.) Second, that the remains of clothing found with her body (yellow weathered material, deteriorated denim jeans and sandals) were the same clothes that Ms McBride wore on 30 September 2014. Third, the absence of any connected calls to or from Ms McBride’s mobile phone (which was never found) nor any outgoing messages after that date. The last activity on Ms McBride’s phone was a call at 11:52 am on 30 September 2014 to the appellant, which the Crown says it can be inferred was made by Newson using Ms McBride’s phone before he dropped her off at Mr Easton’s house. Fourth, that Ms McBride’s mobile phone remained connected to the same phone tower in Muswellbrook between 1:32 pm on 30 September 2014, when an incoming message was received from her mother, and 7:45 am on 1 October 2014, which was the last time an activation of the device was connected to a cell tower. The Crown says that this shows that the phone remained in Muswellbrook where it eventually stopped working. Finally, that there were no banking transactions (the Crown noting that it was not in dispute that Newson was in possession of Ms McBride’s debit card, which was her only bank account) (30/05/22, T 672). This last point is relied upon by the Crown to say that Ms McBride did not have the means voluntarily to disappear.

90. The Crown says that the evidence of Mr Palmer established that Newson had an opportunity to commit the murder; pointing to the evidence that Newson was at the appellant’s house at 2:02 pm (when he recorded the short video on his own phone) (see 3/06/22, T 900.30-33; Ex CM) and to Mr Palmer’s evidence that Newson was not there when he came to visit the appellant at the appellant’s house for a brief time shortly after 2:13 pm (see 27/05/22, T 604.46-605.20). The Crown notes that Mr Easton’s evidence was that Ms McBride left his house at around 2:00 pm to go to McDonald’s (see 25/05/22, T 503.26), which the Crown says is consistent with Newson no longer being at the appellant’s house when Mr Palmer arrived.

91. The Crown refers to the fact that Newson himself confirmed in his first interview with police that Mr Easton told him, when he arrived at Mr Easton’s house later in the evening, that Ms McBride had left at about 2:00 pm to meet him (which the Crown relies on as corroborating Mr Easton’s evidence in this respect). The Crown points to evidence (admitted without objection at the trial) that Newson made comments to others suggesting there was a plan for him to meet Ms McBride. As already referred to (see ground 6 above), Ms Finch gave evidence that Newson told her that he was supposed to pick Ms McBride up from McDonald’s at 2:00 pm but she had not showed up (01/06/22, T 765.5-9). The Crown also points to the evidence of Ms Lorraine Williams, Ms McBride’s mother, that Newson told her in a conversation on the night of 30 September 2014 “Carly’s gone, Carly’s gone. She has got no money… I was supposed to pick her up at McDonald’s. She never got there” (23/06/22, T 318.41-46); and to the evidence of Ms Vivian Hazelton (in her statement admitted as Ex BF) that she worked at the Railway Hotel in Muswellbrook and that at about 5:50 pm on 30 September 2014 a male (by inference Newson) said he was meant to pick up his fiancée at McDonald’s at 4:00 pm and she was not there (see Ex BF at [12]).

92. The Crown notes that Newson told police during his first interview on 3 October 2014 that he dropped Ms McBride off around 11:30 am and would generally have picked her up from Mr Easton’s house at 2:30 pm; and that Ms McBride would usually have sent him text messages or called him while she was at Mr Easton’s house (see Q120-122). The Crown notes that there was no evidence that on this date Newson attempted to contact Ms McBride, and argues that this indicated either a pre-arrangement, or a plan by him, to meet Ms McBride at the end of her visit (i.e., that it was not a meeting “by happenstance” as the appellant’s submissions suggest).

93. The Crown says that Mr Palmer’s evidence alone could establish that Newson left the appellant’s house shortly after 2:00 pm and had the opportunity to meet up with Ms McBride but that, combined with the body of evidence as to there being such an arrangement, it was well open to the jury to conclude that Newson did so and intercepted Ms McBride shortly after she departed Mr Easton’s residence. It is noted that CCTV footage at McDonald’s in Muswellbrook did not show either Newson or Ms McBride, indicating that she did not reach that location after leaving Mr Easton’s house.

94. As to motive, the Crown says that Newson’s jealousy was a credible motive. In this regard, reference is made to the messages Newson had sent to Ms McBride in August 2014 that showed his aggression towards her (see Ex O); the evidence that, in the days leading up to her disappearance, Ms McBride told her neighbour (Ms Shayne Bagnall) on 26 September 2014 that she had had an argument with her boyfriend Sayle Newson, had not seen him for three days and did not know where he was (23/06/22, T 334.31); and that a friend of Ms McBride (Mr Christian Bower) gave evidence that Newson was ringing Ms McBride “flat out” when she was in his company on 27 September 2014 (25/05/22, T 431.16-19).

95. The Crown also notes that on 27 September 2014 Ms McBride was meant to spend time with Mr Troy Moffitt, another man she had met “in rehab”, and that Ms McBride’s father gave evidence that she suddenly cancelled the plan because Newson came to pick her up (Ex BK regarding Mr Moffitt’s evidence; 27/05/22, T 595.22). Ms Bagnall gave evidence that, on that day, Ms McBride had asked to use Ms Bagnall’s phone and that when Ms McBride got off the phone to Newson she was “quite agitated” (23/05/22, T 336.26). Ms Bagnall gave evidence that after that she was told by Ms McBride’s father that Newson had picked her up (23/05/22, T 336.32).

96. The Crown notes that on 29 September 2014, Newson caused Ms McBride to delete her Facebook account. For this, the Crown relies on the evidence at 23/05/22, T 341.38-40 as to when the Facebook account was deleted; Mr Williamson’s evidence at 2/06/22, T 828ff as to the deletion of Ms McBride’s Facebook account; and Newson’s account of Ms Bride deleting her Facebook (at Ex AU p 60).

97. The Crown submits that the evidence that, before Newson dropped Ms McBride at Mr Easton’s house, Ms McBride changed from a dress into denim jeans and the yellow top was consistent with Newson’s jealousy of her (14/05/22, T 1081); and notes that Ms McBride’s mother gave evidence that Newson was “very controlling” with Ms McBride (23/05/22, T 313.20).

98. The Crown says that it was open to the jury to conclude that Newson had the means physically to attack Ms McBride, having regard to evidence from three other residents of Dooralong who observed him practising martial arts in the gym (see 19/05/22, T 280; 24/05/22, T 366-367; 372-373; 31/05/22, T 680).

99. The Crown’s case was that, by 2:48 pm on 30 September 2014, the appellant and Newson were together again and either in or driving towards Scone (noting that the appellant’s phone connecting to the Scone Mountain Tower at 2:48 pm). The Crown accepts that there were no coverage maps adduced to determine the distance that the appellant may have been from Scone for this to have been the case, but points out that there was evidence that generally a phone would connect to the nearest available tower (see 17/05/22, T 200.27). In any event, the Crown says that there was an opportunity for Newson to have committed the murder some time between 2:02 pm and 2:48pm. (Of course, insofar as the Crown case was that the murder was committed in Muswellbrook, this reduces the relevant time frame for the murder to between 2:02pm and around 2:25/2.30pm.)

100. The Crown emphasises that Newson made no attempt to contact Ms McBride throughout the day despite asserting in his first interview with police that he thought it was “fuck[ing] weird” that he had not had any contact from her (see his first police interview on 3 October 2014; Ex AU p 17). The Crown says that, although Newson said he had no credit on his phone, it was open to him to use the appellant’s phone and there was evidence that this had previously been done (referring to Ex AJ). It is noted that Newson suggested in his second police interview that he may in fact have had “text credit” on the phone (see Ex CT p 86). The Crown points out that the earliest evidence of any attempt to contact Ms McBride was at 5:39 pm using the appellant’s phone (see Ex AH; Ex DF).

101. The appellant’s father gave evidence that, when he arrived home from work on 30 September 2014 (at around 5:45 pm), the appellant told him that Newson could not contact Ms McBride and that she was “missing” or that they could not find her (see 3/06/22, T 912-913). The Crown says that, by that point, it cannot have been known to Newson that Ms McBride was “missing” (unless he was responsible for this) because, on Mr Easton’s evidence, Newson did not attend Mr Easton’s house (purportedly to collect her) until at least 6:00 pm that day (see 26/05/22, T 517.10-11).

102. The Crown also refers to the evidence of Ms Hazelton as giving rise to an inference that Newson had attended the Railway Hotel at around 5:50 pm (which she associated with a television show playing at that time) to look for Ms McBride, noting that this was at a time when he not yet been to Mr Easton’s house (see Ex BF).

103. The Crown also refers in this context to the evidence that digital images of Ms McBride located on a SD card found in Newson’s vehicle had been edited (cropped) at 5:17 pm on 30 September 2014 and a new file created with a new filename (see 3/06/22, T 897-899; Exs CK and CJ). The SD card had been connected to the same model Samsung phone as that found in Newson’s possession. The Crown case was that Newson, while in the appellant’s company, created the images to use in the search for Ms McBride, and that Newson was aware of the need for the photographs before he could (on the account he gave to the police) have known Ms McBride was missing (again noting that Newson did not attend Mr Easton’s house until at least 6:00 pm).

104. In relation to the digital evidence the Crown notes the following. First, that metadata for the photographs established that the photos had been taken earlier in the day between 12:01 pm and 12:02 pm (see 3/06/22, T 894-897 per a digital forensics expert, Sergeant Webb). Second, that while there was a challenge to the accuracy of the timestamps on the photographs, there was ultimately no basis to doubt their accuracy because Ms McBride was holding a can of “V energy” drink in the photographs, and “V energy” drinks had been purchased at 11:37 am at the service station in Singleton (18/05/22, T 219; Ex W). The Crown points out that, had the photographs been taken half an hour earlier, Newson would not yet have purchased the energy drinks; and had the photographs been taken anywhere between half an hour and one hour later, Ms McBride would have no longer been in the car. Thus, it is submitted that it was open to the jury to conclude that the timestamps must have been accurate.

105. The Crown notes that there was additional evidence of images and video on the SD card whose timestamps coincided with objective evidence (including speed camera detection) to establish the accuracy of the time stamps. Thus the Crown says that it followed that the time of editing of the relevant file (5:17pm) was accurate.

106. The Crown also points to evidence that: Newson contacted Mr Robert Etheredge, who ran a business involving the replacement and fitting of internal car parts, on 1 October 2014 (see 9/06/22, T 1029.30); and that Newson was in the vicinity of his business on 5 October 2014 with Ms Tanya Chilcott, which the Crown says was capable of suggesting that Newson had in some way modified his vehicle (though it is noted that Mr Etheredge denied this in his evidence) (see 9/06/22, T 1029-1030; Ex CO, 13/05/21, T 1120). The Crown emphasises that the call to Mr Etheredge was made around 15 minutes after Newson had attended Muswellbrook Police Station and had advised police that Ms McBride may be with a former partner, Mr Moffitt.

107. The Crown says that there was other evidence of Newson acting in a way that was consistent with knowing that Ms McBride was dead (as opposed to missing) in the days after her disappearance. In that regard, the Crown notes that Newson told Senior Constable Dennis at 1:30 pm on 1 October 2014 that the police were “looking for a dead body” (see 27/05/22, T 592.10-17).

108. In addition, the Crown points to the extensive evidence of Newson attempting to implicate Mr Easton (referring to his police interviews as the most notable in that regard).

109. As to whether the Crown had excluded reasonable hypotheses consistent with innocence, the Crown notes that the key issue at the trial was whether the Crown had excluded the involvement of Mr Easton in Ms McBride’s disappearance. The Crown in closing address told the jury that the jury would have to be satisfied that “it was not Andrew Easton” and “be satisfied that the Crown eliminated this alternative hypothesis, as it has done in relation to other potential suspects” who committed the murder (see 14/06/22, T 1067.30-42).

110. With respect to Mr Easton, the Crown says that there was extensive evidence of enquiries that the police made, including checks on the movements of his car and his mother’s car, the use of telephone intercepts from 20 October 2014 with nothing of interest identified, and searches of his home and vehicle between 23 October 2014 and 21 November 2014. The Crown says that the communications between Mr Easton and Ms McBride about contact visits regarding their daughter had been amicable (referring to the text messages exchanged between the two (Ex AV) and the summary of Ms McBride’s visits to Muswellbrook (Ex S)).

239. It was open to the jury to understand that Newson mistook the number of days since Ms McBride had gone missing. The day of this interview was in fact only the third since her disappearance and the answer to Q 124 evidently referred to a visit by Newson to Mr Easton at his house on a previous evening. That he was describing an evening visit became apparent in the answer to Q 135. In his second interview on 31 October 2014 Newson repeated his account of having confronted Mr Easton at his front door and having wanted to assault him but in that second interview he said that that occurred late on the evening of 30 September 2014

240. The answer to Q 128 included the following:

A 128   […] Well, this is what Drew told police the first time. When she left […] she was definitely drug affected, that’s what […] he told the police first time right? I confronted him with that and he said “No, no, no, I didn’t say that, they twisted them words around”. I am like “All right dickhead, fucken whatever OK”. And now, now fucken four days in he’s given her something. […] So, so he’s given her something for a headache and a cough. […]

From A 135, considered in the next paragraph, it is apparent that the visit to Mr Easton’s home referred to in A 128 is the same as that referred to in A 124 and that it was on an evening prior to the day of the interview.

241. The answer complained about in ground 4 is then as follows:

Q135   Did he um, did he tell you what he gave her for a headache and cough?

A   No, he couldn’t remember. Couldn’t remember and I couldn’t, I, mate, like, he had his daughter, she was hugging his leg, man, I just, like I just wanted to front kick him. I just want to front kick through the front door and just, I wanted, I want to bash him to death. I really want to bash him to death. And I was planning on. And um, I tell you, Fuck, his, his, his, his answers and shit that night were just fucken crazy.

242. The appellant complains that the statements in A 135 about wishing to “front kick” Easton and to “bash him to death” were “historical reports” by Newson and, as against the appellant, hearsay concerning Newson’s violent impulse toward Mr Easton. He submits that such statements from Newson to police were admissions of violent tendency, which could be adduced against Newson in his trial for murder but were not admissible against the appellant to prove Newson’s violent disposition – and hence the likelihood of him having committed the principal offence – in the trial of the appellant as an accessory.

243. The impugned answers could only have conveyed to the jury a violent attitude on Newson’s part if taken at face value. On that basis his answers described a tendency to violence against a person whom Newson suspected of having harmed Ms McBride, not a tendency to violence against Ms McBride herself. For that reason alone, the evidence could not have been regarded by the jury as significant in proof of the Crown’s case that Newson had committed the murder. Further, the evidence had the potential to support the appellant’s case in two ways. First, it suggested that Newson, far from being responsible for Ms McBride’s death, was stricken with grief to the point of contemplating extreme violence against the man whom he alleged was the last to have seen her alive and whom he suspected. Secondly, the impugned answers advanced the appellant’s case that there was a reasonable possibility that Mr Easton was the murderer. These considerations rebut the appellant’s claims that the inclusion of A 135 resulted in a miscarriage of justice and the loss of a chance, fairly open, of acquittal.

244. The second passage complained of in Newson’s 3 October 2014 police interview is a long, unnumbered answer at the end of the edited tender version. Newson told police that he knew “a lot of guys” were sending Ms McBride “a lot of pictures of their cocks and all this shit so I try not to get involved”. He said that her phone was constantly issuing notification sounds for messages received. Because he did not have phone credit, he would use Ms McBride’s phone from time to time. Upon doing so, he would see 30 odd messages, all from other men, received by her in the preceding hour. These would be invitations to meet, or statements that the sender had seen Ms McBride somewhere and that she looked good, or similar. Newson claimed that on 29 September 2014 he said to Ms McBride:

Look, I said I’m not, jealous I don’t want to get possessive and all that shit but look either you put a stop to this right now or I’m going to put a stop to it. I’ll go through your phone and, um, go and see each, each person, each guy in there.

245. Newson told police that Ms McBride responded:

Oh, fine, I’ll cancel my Facebook and I’ll get rid of the lot of them.

He said that she “cancelled her Facebook on the spot” but the argument between them “went on for about another 10 or 15 minutes and […] I got real fucking angry and I […] had to leave”. Newson told police that he then had the following thought about the matter:

[A] 30 year old girl that lives off Facebook just cancelled on the spot for me, bang gone and was changing her phone number the next day which was the day she went missing. Um, I thought, fuck, that girl loves me bad, you know and I loved her too because that’s why I was angry.

246. Again, the appellant submits that this information from Newson was an admission against interest that could be adduced against him in his own trial, to prove his jealousy with respect to Ms McBride as a motive for her murder, but that, as against the appellant in his separate trial, it was pure hearsay of the events described and should not have been admitted. However, other admissible and uncontested evidence in the trial, of which no complaint is made on appeal, demonstrated Newson’s jealousy and controlling conduct towards Ms McBride – in particular, a series of text messages between Newson and the deceased in the period 16 August to 1 September 2014 (Ex O). A subsequent girlfriend, Ms Sharon McAlpine, gave evidence of Newson’s jealousy with respect to her, which erupted into him smashing phones and other property at times. In the context of that other evidence, the answer in the record of interview concerning cancellation of Ms McBride’s Facebook account could not realistically have caused a miscarriage of justice.

247. Further to that conclusion, on the assumption that the jury would treat the answer as evidence of the truth of its contents, it is self-serving from Newson’s point of view. It portrays his stance about the Facebook account as a reasonable reaction to the provocation of numerous men making frequent explicit advances to Ms McBride. The long answer that is subjected to at the end of the interview is to the effect that the point of conflict between the couple had been resolved with cancellation of the account on 29 September 2014 and that Newson’s affection for Ms McBride had survived the event, making it improbable that he would have murdered her the next day.

248. In the absence of demonstration that a miscarriage of justice resulted from the 3 October 2014 record of interview going into evidence with the inclusion of the answers discussed above, leave to appeal on grounds 4 and 5 should be refused under r 4.15 of the Supreme Court (Criminal Appeal) Rules.

Ground 6 – direction as to use of statements made by Newson

249. Ward P has quoted at [39] and [41] the directions to the jury that the appellant criticises in ground 6. It seems that the trial judge’s perception of a need to instruct the jury about the use they might make of Newson’s acts and statements arose from his understanding that the Crown case was founded upon a joint criminal enterprise of Newson and the appellant to conceal the murder of Ms McBride. In between the two passages that the President has quoted, the learned trial judge gave a full joint criminal enterprise direction, which I quote in slightly abbreviated form as follows:

In order for you to find the accused guilty, the Crown must satisfy you of the following matters in relation to the accused:-

(1) That there was, in fact, an agreement between the accused and Sayle Newson to do the things outlined by the Crown. The Crown says that this agreement came into being at about 2.30pm on 30 September 2014 and continued until the accused was arrested.

(2) That the accused participated in that agreement.

As to the first of these matters, namely, whether there was an agreement of the kind alleged by the Crown, I direct you as follows, an agreement does not have to reached by any formal means. […] In this area of the law, all that is necessary for there to be an agreement is for two or more persons to concur, either by words or by conduct in a common design, each having the intention to bring about the object of the agreement. […] In the present case the Crown seeks to prove the agreement and the nature of the agreement by inferences available from its circumstantial case.

As to the second of the matters which the Crown has to prove in order for the accused to have participated in the agreement, that he must have known what was proposed as the objective of the agreement and must have intended to carry out that objective into effect. The Crown may seek to prove that the accused participated in the agreement in a variety of ways. It may do so by leading direct evidence of witnesses of the accused by his conduct, including any statements he may have made indicated that he was a participant. The Crown may also seek to prove such an agreement by inferences, from acts done or statements made by the accused in apparent furtherance of the purpose or objective of the alleged agreement.

250. It is not apparent from reading the prosecutor’s closing address that the Crown case was based on joint criminal enterprise. There were aspects of the evidence and of the Crown’s arguments that suggested a measure of agreement and coordination with Newson in the steps that the appellant was alleged to have taken to conceal the murder. However, such agreement as existed was incidental to the appellant’s acts that constituted the actus reus of the accessory offence charged. The Crown did not rely upon the doctrine of joint criminal enterprise for the purpose of attributing to the appellant acts of concealment of which the author was either Newson or, indistinguishably, one or both of them.

251. The principle of admissibility for which Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 stands appears from the following abbreviated passage of the Court’s judgment at pp 6-8:

It is urged that the rule under which upon charges of conspiracy evidence is admitted of what is done and said by the parties to the combination in furtherance of the conspiracy is a rule of a special nature and is incapable of application to charges of a substantive offence. [...] It is a mistake to think that the rule the chief application of which is in charges of conspiracy is a special rule of evidence confined to that offence. […] [When] a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case. […] It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or pre-concert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others. From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. […] [Often] enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstances of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design. In the present case the things said and done when the prisoner was not present or within earshot are for the most part of this character and are admissible as part of what was done in furtherance of the common criminal purpose.

252. There was reasonable evidence before the jury that the appellant and Newson had a common purpose of concealing Newson’s homicide of Ms McBride. The extensive circumstantial material, summarised by Ward P and at [154]-[161] and also referred to at [175]-[193] above, supported an inference that at some time shortly after 2:02 pm on 30 September 2014 Newson killed Ms McBride and thereafter disposed of her body at Owens Gap. When that was coupled with evidence that the appellant had driven Newson to Scone that afternoon, uncontestably to within 17 km of Owens Gap, and had then returned with him to Muswellbrook and driven him around the town as he purported to enquire at hotels and clubs whether anyone had seen Ms McBride, there was a reasonable basis for inferring that the two men had acted in furtherance of a shared purpose of concealment. Newson’s and the appellant’s seemingly coordinated claims to police of having undertaken innocent activities on the afternoon in question and their participation in publicising Ms McBride’s disappearance added to the reasonable evidence of common purpose.

253. However, the principle in Tripodi v The Queen is not able to be sensibly applied to a case where one party to the putative common purpose, Newson, is a principal offender and the other party, the appellant, is being tried as an accessory after the fact. The appellant’s criminal liability on the accessory charge depends upon proof of the part that he, individually, played in carrying out the apparent common purpose of concealment. The principal offender will in most such cases share the purpose of covering up the crime and will take steps and make statements in furtherance of that objective. It would be an absurd outcome if, by “implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others”, as referred to in Tripodi v The Queen, Newson’s own acts and statements by which he sought to conceal his crime should be imputed to the appellant. That could result in the appellant being convicted as an accessory on the basis of what the principal himself said and did to escape justice, rather than on the basis of what the accessory said and did to aid him.

254. As an example, Newson’s answers under police questioning and his statements to Ms McBride’s father may have satisfied the jury that he endeavoured to cast suspicion upon Mr Easton as a means of deflecting the murder investigation from himself. If the jury did not find that the appellant had similarly tried to implicate Mr Easton, it would be nonsensical for the appellant to be held liable as an accessory on the basis that Newson’s statements about Mr Easton should be treated as the appellant’s acts because they were made in furtherance of their shared purpose of concealing Newson’s crime.

255. Having regard to the above, it was appropriate for the Crown not to have relied upon joint criminal enterprise. In the absence of such reliance, the trial judge’s direction with respect to the subject was unnecessary. It was favourable to the appellant in that it set up an additional threshold of proof for the Crown that the Crown should not have been required to meet.

256. The direction that is challenged pursuant to ground 6, concerning use of Newson’s acts and statements to support the case against the appellant, was unnecessary rather than inaccurate in itself. The direction could not have provided useful guidance to the jury, nor could it have misled them, in the absence of any specification of what acts or statements by Newson the Crown sought to rely upon against the appellant, whether to prove an agreement between them or to prove the appellant’s participation or otherwise. As far as can be ascertained from the prosecutor’s final address, he did not specify or say how the jury were to use any such acts or statements. It is not shown that the appellant suffered any risk of miscarriage of justice from the unnecessary directions about joint criminal enterprise and about use of Newson’s acts or statements.

257. The appellant’s counsel identified only one statement made by Newson in the absence of the appellant that he submits the jury might have utilised for a purpose contrary to law by relying on the trial judge’s direction. That was Newson’s statement on the phone to Nicole Finch, in about late 2014, of which she gave the following evidence:

Q. […] Did he say what happened, about her being missing?

A. Yeah he told me that he drove her to her daughter's house, the father's house, she was going to visit her daughter and he dropped her off there and she was meant to meet him at McDonald's afterwards and she didn't show up.

Q. Did he mention a time at which she was meant to meet him?

A. Yeah he was - she was meant to meet him at McDonald's at 2.

[…]

Q. When you were told about the pickup to be at McDonald's, did you ask him some more questions about that?

A. Yeah well I, yeah I asked him why he didn't pick her up from where he dropped her off from.

Q. Yes and what did he say?

A. He said “That’s what Carly wanted.”"

258. Those answers were significant evidence that Newson understood, from when he left Ms McBride at Mr Easton’s house, that she would meet him at the McDonald’s Restaurant at 2:00 pm, after the access visit. The circumstance that he had such an understanding supported the inference that he left the appellant’s house shortly after 2:02 pm and was able to intercept Ms McBride at some point along her walking route to the restaurant. The distance of 1.5 km would take about 15 minutes on foot. If the jury were satisfied that Newson expected he could find Ms McBride at the restaurant or on her way there at about 2:00 pm, that would support a conclusion that it was feasible for him to have encountered Ms McBride and killed her in the short window of opportunity that was available according to the timing of objectively proved surrounding events.

259. The probative value of what Newson said to Ms Finch did not depend upon it being true as to Ms McBride having agreed to the rendezvous. The Crown only needed to rely upon Newson’s words as evidence of his own understanding of the arrangement. The Crown case was that he acted upon an expectation of where he could find Ms McBride, which proved to be correct.

260. Ms Finch was a long-term friend of the deceased. Her phone call to Newson was in response to the Facebook missing person notification, which included Newson’s contact number. Ms Finch was not certain of the date of the call. Admissibility of her evidence depended upon whether the call could be said to have been contemporaneous with Newson having had the state of mind of which he spoke, as to where he expected Ms McBride to go after the access visit on 30 September. The applicable provision is s 66A of the Evidence Act, as follows:

66A Exception: contemporaneous statements about a person’s health etc

The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.

261. Ms Finch’s evidence could have been objected to successfully. She was not able to establish reasonable contemporaneity. The phone conversation with Newson may have taken place weeks or months after the time at which his relevant state of mind existed. However, as no objection was taken leave should not be granted for this ground to be argued in circumstances where other evidence, which was admissible under s 66A, was capable of satisfying the jury of the same matter. No miscarriage of justice could have occurred.

262. The deceased’s mother, Ms Williams, gave evidence, without objection, that she left a message on Newson’s phone at about 9:45 pm on 30 September 2014 and that he called back shortly afterwards. She gave the following answers:

Q. Did he say words to this effect to you: "Carly's gone, Carly's gone. She has got no money"?

A. Yes.

Q. Did he say to you "I was supposed to pick her up at McDonald's. She never got there"?

A. Yes.

263. Ms Williams was not cross-examined. Newson’s representation that he was “supposed to pick her up at McDonald’s” could only have been a reference to his understanding of the arrangement he had made with Ms McBride the last time they spoke, which was shortly before 1:00 pm. The conversation with Ms Williams was, therefore, within hours of the time at which he had that understanding and should properly be regarded as contemporaneous for the purposes of s 66A. In speaking with Ms Williams, Newson did not nominate a time at which he understood he was to pick her up but the jury were well able to infer that the agreed time must have been 2:00 pm, having regard to Mr Easton’s evidence of Ms McBride’s abrupt departure.

264. Mr Easton gave the following evidence in chief:

Q. You say that she left at about 2 o'clock?

A. Yes.

Q. How did that come about please?

A. Just grabbed her handbag and said "I'm off."

[…]

Q. And when she said "I'm off", did she mention where she was going?

A. Yes. She just said she's - "I'm off. I'll", something along the lines of "I got picked up from McDonald's."

Q. And did she mention a name in terms of getting picked up?

A. I can't remember.

265. Answers from Mr Easton’s record of interview of 23 October 2014 were read back to him, by leave of the trial judge. He said that his memory was fresh at the time of that interview. He confirmed the following answers that he had given to police:

Q. And can you run us through the time before she left or leading up to that, what was happening there?

A. We were - we were going through these bags and boxes and she was having a keep pile and do what you like with them sort of thing and yeah, just all of a sudden made the call that she was going to head off and I thought whatever, you know.

A. Um, and you don't try and stop her you know, uh-huh.

Q. So, when you said she made the call all of a sudden to leave how what - how exactly did that?

A. Well, it was more like I'm just going to head off, go, go to McDonald's and get Sayle to pick me up from there.

266. In cross-examination Mr Easton was reminded of the following answer given during his earlier police interview, on 3 October 2014, which again he confirmed:

Q. Did she say the reason that she wasn't [sic] get Sayle to pick her up from--

A. No, no just yeah, just said “I'm going to head off, walk to Macca's and get him to pick me up from there.”

267. Mr Easton said that when Newson came to his front door that evening, the following occurred:

A. I think he said he was here to pick Carly up and I said "She left. She was meant to call you" or something along those lines.

Q. Did you say to him where she was meant to call him from?

A. Yes, I said she was - what, what she had said, heading to McDonald's.

[…]

Q. When you said to him, "She was meant to ring you", what did he say?

A. I, I can't remember that one.

268. According to Ms Vivian Hazelton’s statement, which was read to the jury, Newson came into the Railway Hotel purporting to look for Ms McBride at about 5:50 pm on 30 September 2014 and said words the effect:

I was meant to pick up my fiancé at McDonald’s at 4:00 pm and she wasn’t there.

Ms Hazelton was not required for cross-examination. Although Newson specified to her a later time for the meeting, the significant aspect was that he acknowledged having understood that he would meet Ms McBride at McDonald’s rather than be collected at Mr Easton’s house, as had occurred on previous access visits. The timing of Ms McBride’s departure and her haste provided the basis upon which it was open to the jury to infer that she and Newson had arranged to meet at the restaurant at 2:00 pm. The evidence showed that Ms McBride had no other friends in Muswellbrook and that she made no phone call and sent no message to Newson after setting off from Mr Easton’s house. It was a very strong inference for the jury that a meeting with Newson at McDonald’s at that time was prearranged.

269. Leave to appeal on ground 6 should be refused.

Ground 7 – evidence of sexual interaction between Newson and Ms Patterson

270. Leave to appeal should be refused in respect of ground 7, where no objection was taken at trial to the evidence of Newson’s communications and sexual activity with Ms Patterson on the day after Ms McBride disappeared. Ward P has summarised that evidence in some detail. I do not accept the appellant’s submissions that this conduct amounted to a representation by Newson. It was not adduced or relied upon for the truth of anything that Newson said, or that he wrote in text messages to Ms Patterson, or that he implicitly conveyed by his actions. The evidence was simply adduced to prove the facts of what occurred between Newson and Ms Patterson, which was circumstantial evidence of his lack of genuine concern for Ms McBride. It was open to the jury so to construe his conduct and to find therein circumstantial support for the Crown case that he had killed Ms McBride the day before. The jury could take the view that his conduct was inconsistent with Newson being unaware of what had become of Ms McBride and being concerned for her.

Ground 8 – text message sent by appellant on 9 April 2015

271. Ground 8 concerns the appellant’s text message to Ms Marston about having given “everything I had to help some[one] out of a bad situation”, quoted in full by Ward P at [67]. In my view the Crown’s reliance on that message was entirely misplaced. The wording is obscure and ambiguous. It was improbable speculation to submit to the jury that the message concerned assistance the appellant had given to Newson to conceal the homicide of Ms McBride. The obscurity of the message was persuasively argued by defence counsel in final address. I do not consider that it was capable of causing any detriment to the appellant’s trial, let alone a miscarriage of justice or the loss of chance, fairly open, of acquittal. The message had no probative force to any point. No objection having been taken, r 4.15 should be applied and leave refused in respect of ground 8.

Ground 9 – unreasonable verdict

272. In my view it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that Newson killed Ms McBride on the afternoon of 30 September 2014 by blows inflicted with intent to cause at least grievous bodily harm, that the appellant learned of this and that he assisted Newson to conceal the crime. It was open to the jury also to be satisfied to the criminal standard that the appellant’s assistance included helping to dispose of the body, giving false answers to the police to provide Newson with an alibi and supporting Newson in his performative appeals to the public for information concerning Ms McBride’s disappearance. The guilty verdict was open. It would not be useful to consider this ground in any further detail in view of my conclusion reached below that the proviso to s 6(1) of the Criminal Appeal Act should not be applied in respect of the error identified in ground 1.

The proviso in relation to ground 1

273. When the certificate of Newson’s conviction was received in evidence and copies were distributed to the jury, the trial judge gave the following direction:

HIS HONOUR: Just before it’s distributed. I'm going to now give you a direction of law concerning this certificate, ladies and gentlemen. The Crown has the onus of proving all of the elements of the offence beyond reasonable doubt and the accused bears no onus to prove anything. The certificate of conviction tendered by the Crown is prima facie evidence that Sayle Newson murdered Carly Dawn McBride on 30 September 2014. Sayle Newson pleaded not guilty to that offence and after a trial, a jury found him guilty on the evidence presented at that trial.

The Crown bears the onus of proving in this trial;

1) That the crime of murder was committed by Sayle Newson.

2) That the accused intentionally assisted Sayle Newson.

3) That at the time of that assistance, the accused was aware of all of the essential facts and circumstances that gave rise to the murder of Carly McBride by Sayle Newson.

4) That the accused, with that knowledge, intentionally assisted Sayle Newson.

5) That the accused gave that assistance so that Sayle Newson could escape arrest, trial or punishment for the offence committed by him.

You must be satisfied of the first element beyond reasonable doubt, namely, that Sayle Newson committed the crime of murder before you go on to consider the other four elements. The certificate of conviction is prima facie evidence of Sayle Newson’s conviction for the crime of murder. Prima facie means, at first sight or on the face of it and it does not amount to proof beyond reasonable doubt.

You must be satisfied, on all the evidence, including the certificate of conviction, that the first element of the offence has been proved beyond reasonable doubt before you can go on to consider whether the Crown has proved beyond reasonable doubt the other elements of the charge.

The certificate of conviction cannot be used as the only evidence. It is a document showing what others found. You must consider the evidence in this trial when you come to determine whether the Crown have proved the first element of the offence beyond reasonable doubt. You cannot speculate about what others were thinking when determining the question. Equally, you cannot speculate about what evidence they considered. The evidence you must consider is the evidence that comes before you in this trial.

Further, although I'm giving a direction now on how you need to treat the first element of the offence, it's only because the certificate of conviction has been tendered at this stage of the trial. You need to hear all of the evidence in this trial before reaching a decision about the first element of the offence.

274. Those directions were in accordance with the pre-Evidence Act authorities. In summing up the learned judge repeated them, verbatim. Despite the qualification about the jury not knowing what evidence had been tendered in Newson’s trial and the instruction not to speculate about what the jury in that trial “were thinking” when they found Newson guilty of murder, there is a significant likelihood that the jurors before whom the appellant was tried were influenced by knowledge of the Newson verdict coupled with the above direction. Although they were told that they “need to hear all the evidence in this trial before reaching a decision” about whether Newson committed the principal offence and that that element had to be proved by the Crown beyond reasonable doubt, the direction also included that the certificate of conviction “is prima facie evidence that [Newson] murdered Carly Dawn McBride on 30 September 2014”. The evidence tendered against the appellant to prove that Newson had committed the murder was circumstantial. It was a strong circumstantial case but the jury would have been given a substantial inclination to accept it and to exclude any other reasonable hypothesis by the circumstance that another jury had reached that conclusion, which this jury was told could be treated as some evidence “at first sight or on the face of it”.

275. The question whether Newson had committed the murder was the decisive issue in the case. If he killed Ms McBride he could only have done so in a brief interval of time shortly after 2:00 pm on 30 September 2014. He would have to have disposed of the body between then and about 4:40 pm. On the appellant’s answers to police questions concerning his own movements, it was uncontested that he was with Newson throughout that afternoon. If Newson was the murderer then, on the appellant’s admission that the two of them had driven to Scone together that afternoon and on the evidence as to where the body was disposed of, it was a compelling inference that the appellant must have learned of the murder soon after it occurred and immediately commenced to aid Newson in covering it up.

276. It follows from my conclusion on ground 1 that the jury came to consider the critical first element of the charge upon the basis of a consideration that they were directed to take into account and that would likely have influenced them but that should not have been before them at all, according to s 91(1) of the Evidence Act. In Hofer v The Queen [2021] HCA 36 at [123] Gageler J (as his Honour then was) said this:

[An] error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had.

The irregularity of directing the jury, contrary to s 91(1), to treat the certificate of Newson's conviction by another jury as evidence that he committed the principal offence was in my view a miscarriage of justice in that sense.

277. For the purpose of determining whether the proviso should be applied, I assess the error of law as “a serious breach of the presuppositions of the trial”: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [46]. It was an error of such consequence and involving such a departure from the essential requirements of a fair trial that the operation of the proviso is excluded: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [23] (Gleeson CJ and Kiefel J). The critical issue in the case was left to be determined by the jury taking into account an extraneous matter, of potentially significant influence, that by law they should not have been told about or should have been directed to disregard. That being the nature of the error, I am not able to say that no substantial miscarriage of justice actually occurred.

278. A retrial should be ordered because a fresh jury trying the accessory charge without the certificate of conviction and having no knowledge of Newson’s conviction – or, if they should learn of it, receiving a direction not to act upon it – would be well entitled to find the commission of the principal offence proved beyond reasonable doubt on a Crown case limited to admissible evidence. That would be so even if defence counsel in a retrial should successfully object to the evidence that has been considered above in connection with grounds 4-6 and 8.

279. In a retrial there should be a direction to the jury that, in deciding whether the appellant carried out acts of assistance to conceal the murder, they would have to be unanimous as to at least one particular of assistance. No point was taken in the appeal concerning the absence of such a direction from the summing up. The Crown is in a position to tender substantial evidence of assistance by the appellant and the requirement of unanimity on at least one particular would not be an impediment to a viable prosecution case.

Orders

280. I propose the following orders:

1. Grant leave to appeal against conviction on grounds 3 and 9.

2. Refuse leave to appeal on grounds 2 and 4-8.

3. Uphold ground 1 and allow the appeal.

4. Order that the conviction be quashed and that there be a new trial.

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Decision last updated: 24 July 2025